Abstract

This paper considers the International Criminal Court's recent indictment of Sudanese President Omar al-Bashir in light of what it characterizes as a clash of commitments. Weak states sign on to the ICC to commit to prosecuting their opponents and so need relatively certain prosecution; the ICC has a similar interest in assuring that prosecutions go forward without regard to political considerations. Yet sometimes states and the international community need to make another form of commitment, namely a commitment not to prosecute. These competing imperatives cannot easily co-exist, and the indictment of al-Bashir brings them into direct conflict. The long delay between the indictment by the ICC prosecutor and confirmation by the Court suggest that the ICC is caught between these competing commitments.

Ginsburg, Tom, The Clash of Commitments at the International Criminal Court (November 18, 2008). Chicago Journal of International Law, Forthcoming; U of Chicago, Public Law Working Paper No. 251; Center on Law and Globalization Research Paper No. 09-03. Available at SSRN: https://ssrn.com/abstract=1303849